Mandated Health Insurance is Unconstitutional

Senate Judiciary Chairman Unable to Say Where Constitution Authorizes Congress to Order Americans to Buy Health Insurance
Thursday, October 22, 2009
By Matt Cover, Staff Writer

All versions of the health care bill currently being considered in Congress mandate that individuals buy heatlh insurance. Americans who don’t would be subject to a financial penalty.

Attorney David Rivkin Jr., who worked in the Justice Department under both Presidents Ronald Reagan and George H.W. Bush, said that Sen. Leahy’s response about the constitutional authority to mandate the purchase of health insurance “is wrong.”

“None of Congress’ enumerated powers support an individual purchase mandate,” said Rivkin. “We have made this case in considerable detail in our recent articles in The Washington Post and The Wall Street Journal. Indeed, the Congressional Research Service, an entity that is usually deferential to Congress’ prerogatives and prone to take an expansive view of congressional powers, when asked by the Senate Finance Committee Chairman Max Baucus about the constitutionality of individual purchase mandates could only say that this is a ‘novel question.'”

“This mandate can only be based upon a view that Congress can exercise general police powers, a view profoundly at odds with the Framers’ vision of the federal government as one of limited and enumerated powers,” he said. “If the federal government can mandate an individual insurance purchase mandate, it can also mandate an unlimited array of other mandates and prescriptions, including the mandate to buy health club memberships or even to purchase a given quantity of fruits and vegetables.”

“This state of affairs would completely warp our constitutional fabric, vitiate any autonomous role for the states and eviscerate individual liberty,” said Rivkin. “It is profoundly un-American.”

Hoyer said that the insurance mandate was constitutional because
Congress is not forcing Americans to buy one particular policy, just any health insurance policy.

David B. Rivkin, a constitutional lawyer with Baker & Hostetler, told that Hoyer’s argument was “silly,” adding that if the general welfare clause was that elastic, then nothing would be outside
of Congress’ powers.

“Congressman Hoyer is wrong,” Rivkin said. “The notion that the general welfare language is a basis for a specific legislative exercise is all silly because if that’s true, because general welfare language is inherently limitless, then the federal government can do anything.

“The arguments are, I believe, feeble,” he said.

Redacted from article at:


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